There has been a considerable discussion about an Op-Ed I co-authored with David Bernstein on Justice Breyer both here and at Volokh.com. I wanted to clarify a few things in this follow-up post.

The comparison between Holmes and Breyer was not meant to suggest that they would vote the same way if confronted with the same cases; the comparison was to show how some of Breyer’s democratic/majoritarian views on active liberty, in many respects, sound in the Progressive tradition. In the Op-Ed we also compare Breyer with Robert Bork on this front (a point that none of the comments even mentioned); I wouldn’t even suggest that Breyer and Bork would vote similarly.

This op-ed was not about specific cases; it was about judicial philosophy.

I think the primariy misunderstanding is over one important point: as articulated by Alex in the comments, if Justice Breyer has a similar philosophy as Justice Holmes–a philosophy rejected by the New Deal Court–then Breyer would vote to “roll back decades of these pro-liberty precedents” and overturn cases like Brown v. Board of Ed..

This was not our point, at all. We did not imply that Breyer would vote to roll back Brown v. Board. In fact, I am sympathetic to many aspects of Breyer’s dissent in Parents Involved, particularly his characterization of the Chief’s opinion as abandoning Brown (a claim that I think is pretty accurate).

The point was to focus on Breyer’s judicial philosophy.

Breyer’s conception of civil liberties–free speech in particular–relies on, and respects Warren Court’s precedents (such as Brown), but in my mind, he views them in a different manner. Here is Breyer’s gloss on the Warren Court in Active Liberty:

Later Courts–the New Deal Court and the Warren Court–emphasized ways in which the Constitution protected the citizen’s “active liberty,” i.e., the scope of the right to participate in government.”

The focus is not on individual liberty, or the protection of individual rights from over-reaching majorities, but rather on what Breyer calls “active liberty,” or “the scope of the right to participate in government.” (Active Liberty, p. 10).

Returning to the Op-Ed, Breyer would not “roll back” precedents from the Warren Court by overturning them. Rather, he would re-characterize these opinions as not about a fundamental individual liberty interest, deserving of heightened scrutiny, but as part of an active liberty jurisprudence, where courts construe the Constitution in consonance with the right of the people to participate in popular democratic government.

This passage on free speech from Active Liberty is instructive.

One the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process, if applied without distinction to all governmental efforts to control speech, would unreasonably limit the public’s substantive economic (or social) regulatory choices. The limits on substantive choice would likely exceed what any liberty-protecting framework for democratic government could require, depriving the people of the democratically necessary room to make decisions, including the leeway to make regulatory mistakes. [And in a sentence that could come from his dissent in Sorrell v. IMS Health] That, along with a singular lack of modesty, was the failing of Lochner. No one wants to replay that discredited history in modern First Amendment guise.”

On the other hand, to apply across the board uniform First Amendment standards weak enough to avoid the shoals of Lochner would undermine the First Amendment so much that it would not offer sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy. (pp. 41-42)

This is a very Holmesian market place of ideas view of free speech that is short of focusing on why speech, by itself, is important. On the one hand, free speech is important so long as it “offer[s] sufficient protection for the free exchange of ideas necessary to maintain the health of our democracy.” On the other hand, were Courts to unduly strike down laws limiting speech, it would deprive “the people of the democratically necessary room to make decisions.” So one the one hand, we have “protect democracy.” On the other hand, we have “protect democracy.” To borrow from a classic 80’s commercial, where’s the liberty?

This view matches his dissent in EMA. The statute in EMA was popularly enacted by the legislature, and supported by two Governors. Justice Breyer paid “greater attention to [the] document’s democratic theme” and not so much attention to the civil liberties aspects of minors at stake. (p. 7). There was nary a discussion of the liberty interests in his opinion, yet dozens of pages about supporting the democratic choice made by the people.

Justice Breyer’s comments about the role of popular governance in First Amendment cases at the Aspen Institute (I apologize for my rough transcription from the video) echo this sentiment:

Let’s look to see what the justification is if the state wants to restrict expression and let’s look to see if there are an alternative systems. Often you find something in all those categories and there is not much of an alternative but do a little balancing.

In this case, the restriction on speech, the child cannot buy an x-rated game without their parent’s permission. If their parents wanted them to have it, they can go get it.

That is something, not much of a restriction

I look for a rationale for it, and I find 130 studies. And I find that’s not a bad rationale.

Justice Breyer went out of his way to find studies–that were never even considered by the California legislature, or submitted to the Supreme Court–in order to uphold the law. This exemplified, in my mind, a lack of concern for the First Amendment free speech liberty interests involved in the case, and was primarily concerned for the interests of parents through the state in California who wanted to protect the children.

To repeat from the Op-Ed, this opinion “harkens back not to great liberal Justices of the mid-to-late twentieth century, like Earl Warren and William Brennan–who, whatever their flaws, had a deep and abiding belief that civil liberties must be protected from government encroachment–but to an earlier generation of judges associated with the Progressive movement, such as Justice Oliver Wendell Holmes, Jr. and Learned Hand.”

Justice Breyer is not opposed to protecting free speech; he simply decides to give the democractic process (active liberty) a significant amount of weight (would you call his approach in EMA strict scrutiny? I think it is closer to rational basis).

That is not necessarily a bad thing. Rather–and this is what the Op-Ed was getting at–this differs from the tradition of Warren and Brennan and Marshall. That the cases come out the same way is not relevant; what is relevant is how they are decided.

Even if you disagree with my reading of Active Liberty and Breyer’s writings, I hope I clarified the point we attempted to make in the Op-Ed (and I realize I spent 1200 words explaining an 800 word op-ed, so I admit, and concede that I did not make the point nearly as well as I could have).

Cross-Posted at ConcurringOpinions.com.